>> the opponents of proposition 8? >> they do. i think think for strategic reasons they would do that but they would have that option. >> let me ask you. does the ninth circuit taking this case make it more likely now that ultimately this is going to be before the supreme court of the united states? >> well certainly, the ninth circuit taking the case is the necessary step before it gets to the supreme court. but one of the things that the order today from the ninth circuit specifically asked the litigants to argue about is whether the proponents of proposition 8 are the right litigants to be pressing this appeal. if they'll they are not this case might never get to the supreme court. >> we'll keep watching. thank you for being with us. >> thank you. >> stay with nbc bay area for the continuing coverage of today's decision. we'll have live coverage tonight at 6:00 and 11:00. while it is back to school

for many families across the bay area and stores say back-to-school shopping one of the biggest events of the year but it's not just parents doing the shopping this time. the state's budget crisis has teachers dipping even deeper into their wall let's. damian is live outside of lincoln high school in san jose on the first day of class. >> reporter: there is homework on the first day of school and that means parents and teachers had shopping to do. that's good for retailers but not for their pocketbooks. she's preparing for tomorrow's lesson plan. but what jennifer thomas can't erase is the deficit in her personal checkbook. five to $600 a year, a price you pay for being a teacher. >> i can't take the risk that if i don't participate with my own contribution that these kids won't get the education they need. >> the california teacher's

soesh usa said teachers spend roughly a thousand of their own dollars every year on school supplies. and parents, often times, help soften the blow for teachers. this mom in san jose had a list of needed as you polites her daughter's teacher gave out. other parents and students looked for bargains. >> i spent probably $50 so far. not including clothes and backpacks. >> backpack and they yons and stuff. >> notebookwise and they are expensive. most of my budget is going towards textbooks. in college, i have to spend about $500 a semester, at least, for textbooks. >> reporter: this san jose target store says back-to-school shopping is as big as holiday shopping. the registers like that ring, while teachers and parents are left with little choice but to spend. the teachers union here at san jose unified voted last year to take in more students per class.

now they're up to 33 is the average up from 31. last year, that actually helped prevent teacher layoffs. we're live in san jose, bay area news. >> thank you. it was remarkable that classes opened on time for students at trace elementary school in san jose. six weeks ago someone set one of its main buildings on fire destroying 16 classrooms and a library. the fire caused more than $10 million in damages. in the short time since that fire the district installed 20 portable class rooms and built a temporary campus across the street. everything was on time for the first day back to school. parents, students and teachers were all impressed. >> it's amazing. it's been -- phoenix rising out of the ashes and i couldn't believe that it could happen so quickly and so well. the rooms are nice and we're really, really great. >> fire investigators believe the fire was the work of an

arsonist. so far, no arrests have been made. as students head back to the classrooms new test results schools are faring better despite thousands of layoffs and shrinking education budgets the 2010 standardize testing and reporting or s.t.a.r. program shows that 52% students in 2 through 11 tested proficient in tested better 48% were proficient or ain math. each sun 2% from last year. the gap between hispanic students and their white or asian counterparts narrowed but remained largely unchanged for african-american students. he is standing by his woman. that's the word from a prom negligent livermore dentist whose wife is charged with sexually assaulting two teenage boston over a two-year period. jodi hernandez is live in pleasanton where hubbs made her second court appearance. i understand her husband had something to say? >> reporter: hubbs' husband and

her attorney spoke briefly to reporters this afternoon. her attorney said the mother of three is getting a lot of support from family and friends, including her husband who tells us his family remains strong. >> we're doing okay. we're just taking it one day at a time. >> reporter: timothy hubbs says he's standing by his wife. 42-year-old christine hubbs, who's charged with 67 counts of felly sexual assault, for allegedly having sex with two teenage boys including her own daughter's boyfriend. >> my kids are hanging tough. i'm telling you that. >> how are you doing, sir? >> i'm doing okay. >> prom negligent livermore dentist sat in the front row as his wife made her second court appearance. her attorney said they need two more weeks before they're ready to enter a plea. >> i don't say anything about a case until i've thoroughly reviewed all the facts. i don't have that yet. >> reporter: but others have plenty so say. parents and kids in livermore can't believe the mother of

three who appeared to have it all is facing such serious charges. >> it's not right. anybody that does this to kids, it's not right. >> she should be prosecuted to the full extent of law. what she did was wrong. it's morally wrong. it's legally wrong. it's just wrong. >> reporter: but hubbs' husband isn't giving up on his wife. her attorney says she has his full support. >> so he's standing by her? totally. >> reporter: tonight at 6:00, we'll hear from a young man who says he knows hubbs and said he got a ride home from school by her last year in the hummer, the very hummer she used to allegedly, drive her young victims around and allegedly sexually assault them. again we'll hear from that young man tonight at 6:00. reporting live in pleasanton, jodi hernandez, bay area news. a man accused of attacking three women at a walnut creek

apartment complex remains behind bars after a brief court appearance today. bail has been set at $12 million for 22-year-old antonio moutton. the police say the last six weeks he targeted women who live at the park regency apartments, a huge complex with more than 2,000 residents. investigators arrested him at a putsburg b.a.r.t. station last tuesday night. he's next court appearance is scheduled for late next week. a split second decision appears to have cost an east bay teenager his life. police say 19-year-old justin deyoung jumped on his friend's toyota sequoia last night on glenn road in danville and rode on the side of the car for about 75 yards before he fell off. it is not known if the fall killed him or if a car ran him over. investigators say it does not appear alcohol or drugs were involved. and police also say deyoung was not engaging in an activity known as car surfing, a dangerous game of doing stunts on moving cars. >> it was more than just

students and professors back on campus at uc berkeley today. protesters want uc berkeley law professor, john eu fired. he h they said he authored a memo that allowed the bush administration to torture detainees. they marched to the law school dean's office demanding that he be fired. >> you should get the due process that he has denied to thousands of other people. he should be disciplined by the faculty. >> i think the dean made it very clear that academic freedom means that a professor can teach here, despite outside political views and activities, unless someone like the department of justice or the attorney general has found wrongdoing. campus police were called out to the law school but no protesters were arrested. the fire that gutted the sonoma county post office has

been ruled an accident. they say the downtown hillsburg post office appears to have been spashlged by a mechanical or electrical problem. they say the fire started in the attic and in an hour it reached four alarms totally gutting the building. two firefighters were injured and the post office also serves as a community meeting place. still ahead, an investigation underway after a plane crash involving several americans. why it's being called a miracle. and the surgery that's improving the health and bank accounts of diabetics. are only the children really rat a social disadvantage? the results of a new study. and the president is in california at this hour amid a growing controversy over recent comments having to do with a new york potential mosque. and good evening, i'm chief meteorologist jeff ranieri. on this monday we did get in on a little bit of heat for those of you in the east bay. 88 in livermore and tonight

temperatures dropping in the 50s and details ahead. that'sast this week.oong forecast this week. zwree

president obama is in southern tonight as part of a cross-country trip to help re-elect democrats. air force one touched down in l.a.x. less than two hours ago. the president is scheduled to attend a pricey fundraising dinner at the mansion of john wells, the executive producer of "e.r." and "the west wing." steve handelsman reports as much as the president would like to dodge the growing controversy, he has not been able to change

the subject when it comes to recent comments he made about a muslim mosque in new york city. >> reporter: president obama began a three-day tour to help re-elect democrats talking up the recovery. >> we've had added private sector jobs for seven mobs in a row. >> the needs the democrats to get credit. >> when the economy is as bad as this and the employment market is as bad as this, that's pretty much all voters care about. >> reporter: but again today, the manhattan mosque controversy and the president eats weighting into the fight on friday are a distraction from the obama economic theme. mayor bloomberg today -- he's for the mosque near ground zero. >> i think standing up for america's founding principals shows strength. >> reporter: democrats are not applauding. they want to move on. >> i don't think it makes any sense he said this on friday and this on saturday and take what he said an friday and saturday and you know where he stants.

>> reporter: republicans are piling on. >> with a person that's such a great communiqueicatcommunicate being precise. >> reporter: and today, precisely back on his economic message. >> the worst thing we could do is go back to the very same policies that created the same mess in the first place. >> reporter: saying if you want a strong recovery vote democratic. i'm steve handelsman, nbc news, washington. >> and in the midst of this brouhaha and new shake up in the obama administration. in an interview with "foreign policy" magazine robert gates denounced to step down in 2011. he didn't give an exact date and said he wouldn't put president obama on the spot by forcing him to fill a post on a election year. and that's a sensitive year because the u.s. is expected to withdraw troops in afghanistan in july. gates' insists the withdrawal

will go forward as planned. the obama administration said it will require environmental reviews before deepwater drilling. this comes after we found bp had a environmental exception based on information that was several decades old. the fall shrimping season began this morning under a cloud of uncertainty. they are worriedbility contamination and consumers might just avoid gulf products altogether. >> we always take a hit. when it comes down to prices, it's -- they -- we know it's not in the water. >> the state of louisiana has asked bp for hundreds of millions of dollars to pay for continued testing of seafood and a marketing campaign. also coming up tonight on "the nightly news," the latest on bp's efforts to permanently seal the well. that's coming up after this newscast at 5:30. on wall street, u.s. stocks remain relatively unchanged.

the dow jones finished down by more than a point barely extending it's its losing streak to a fifth straight day. the nasdaq finished up eight points. in health news researchers say diabetics who undergo weight loss surgery need tooer medications and have lower health care costs after the procedure. the study urges insurance companies to cover bariatric surgeries because in the long run, health care costs wbs they say, will be significantly lower for the patient. bariatric surgeries typically involve making the stomach smaller. almost 75% of patients gave up their diabetes medication within six months. the centers for disease control and prevention says obesity costs americans as much as $150 billion a year. it turns out women who drink beer regularly may be at higher risk of developing sore rye sis. women who drink relation beer

and not light beer were nearly twice as likely to develop the condition as women that don't drink at all. why beer? researchers believe the barly in beer which contains gluten. it turned out parents with one child should take heart. researchers from ohio state university studied more than 13,000 middle and high school students and found no significant differences in popularity between those with siblings and those that didn't. however, past research has found that kindergarten who had one siblings had better social skills. let's find out if we're going to see any new trnds when it comes to the weather and jeff ranieri is standing by. how about a trend going downward? >> really? >> yes. as if it hadn't been mild enough in august -- welcome back, jessica. back from her vacation.

let's look at the weather. which has been on a vacation all summer long. right now, 64 in san francisco. we have the marine layer out there so we're not seeing as much fog as we did on saturday and sunday. the 64 in san francisco, it's some of the warmest weather we've had in days and that goes for portions of the east bay. right now, 88 in livermore, one of the warmest temperatures in over a week. 89 in gilroy. 76 in sunnyvale. 70 in san mateo and temperatures in the low 80s from santa rosa to no va to. and the fog is back with us and even some low clouds inland and for tuesday, we're talking about a system offshore that's going to help to bring temperatures down as we head throughout the week with even cooler weather, especially throughout thursday and friday. we have the marine layer. that's component number one. we're used to this this time of

year. pulling out wider, this area of low pressure sitting offshore. no rainfall with it but slightly cooler air associated with it. that will help to stay mild across the bay area and it will help to amp up the marine layer in the next couple of days and keep the fog picture with us for tuesday, wednesday, thursday and friday. tuesday, mainly 70s inland and for wednesday, we'll call it mild with this summer air evading us once again throughout the week. by 6:00 a.m. tomorrow in the south bay, temperatures in the 60s and by 11:00 a.m. sun breaking through clouds with conditions in the upper 60s. tomorrow, a few isolated low to mid 80s in the extreme south bay. evergreen, san jose, only 77. fremont, 75. dublin, 78. lynn moore expecting low to mid 80s but on the cool side from san francisco to redwood city and from oakland t 69 to 78, respectfully. 77 in napa. and in the north bay, 76 here in

sonoma. 84 in calistoga and chilly it will coastline with fog and drizzle. seven-day forecast on this first week back to school for many of the kids, it shows it comfortable out there. temperatures in the upper 70s to near 80 degrees inland and upper 50s and low 60s at the coastline. once again, it's looking a lot more like fall than summer. >> look at those highs. >> yeah. >> jeff, thank you, sir. still ahead at 5:00, why experts say the superheroes of today are bad role models compared to those in past generations. and the angry flight attendant who slid down the escape chute may have landed in a bed of s.sero the deal that could make him rich. droiiiid.

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joof investigators are looking into whether a lightning strike is to blame for a plane that crashed landing in the caribbean in colombia. one person was killed but 131

people on board the 737 jet survived, despite the fact it broke into three pieces after the crash. 124 people were injured and six others including a 6-month-old baby were not hurt. federal investigators are looking into a weekend accident in an offroad race in southern california that killed eight spectators. they are studies the race and the procedures for all off-road vehicles. this was on saturday in the mojave decembsert when they had out-of-control car. they are raising questions about the safety and oversight of those types of races on federal land. oscar-winning actor michael douglas will undergo treatment after doctors found a tumor in his throat. the 65-year-old star will receive eight weeks of radiation and chemotherapy sessions. doug earlier this year, his son

was sentenced to five years in prison on drug charges. >> now, reports the flight attendant that went on a tirade could soon have his own reality show. the attorney for steven slater has apparently been contacted by a reality show company for a show that would feature slater helped disgruntles employees quit in dramatic fashion. steven slater is facing charges after the tirade on the plane's loud speakers before he grabbed two beers and slid down the plane's emergency chute that he deployed. back to explain why superheroes are getting flack. [ female announcer ] jobs leaving.

a budget disaster. california on the brink. jerry brown's plan? you run for office and the assumption is, oh, i know what to do. you don't. i didn't have a plan for california. [ female announcer ] with our state in crisis, we need a governor with a plan. you need a real plan, something i'll acknowledge i did not have. [ female announcer ] jerry brown. no plan then. no plan now. meg whitman. a plan for jobs. log on. learn more.

i. superheroes, we just don't make them the way they used to be made. a new study says modern-day superheroes depigted in comics and movies are poor role models for boys. psychology researchers said today's superheroes are aggressive, sarcastic, selfish and rarely speak about doing good for the world. when not in their superheroes costumes they exploit women and are materialistic. they focused on the new batman, ironman, hulk and "fantastic four" movies. superheroes like "superman" are better role models because they stood for social justice and outside of their costumes they were real people with vulnerabilities and they worked hard at their day jobs. >> that's why i'm sticking with wonder woman. she did everything. >> i liked wonder woman myself. >> i bet you did! "the nightly news" is coming

up next on that note. >> was that czar cast snik. >> not at all. see you at 2k6 6:00. bye-bye.